A power of attorney is a writing authorizing one person (the agent) to act for another person (the principal). The term “durable” is often used with power of attorney. This simply means that the power continues even if the principal becomes incapacitated. By law in Virginia now, all powers are durable unless they expressly state otherwise.
A power of attorney is effective upon signing unless it states that it is effective upon a certain date or only upon the occurrence of a future event or set of circumstances. A power which is to become effective in the future is called a “springing power.” A power which is effective immediately avoids the difficulties necessitated by having to prove the satisfaction of whatever conditions are established before the power becomes effective such as, for example, obtaining a doctor’s certification of incompetency. Thus, a power which is effective immediately is more efficient, but of course, leaves the principal at greater risk of being victimized by the agent. Trust is the basis for any appointment of an agent under a general power.
A power of attorney may be general in scope or specific. For example, a person may authorize another to execute documents on his behalf in a real estate settlement. A special power of attorney would be drawn for that purpose and would be limited in scope only to those actions necessary to close the transaction. Usually an outside date is set upon which the power will expire if the transaction has not been completed by that time.
The existence of a valid general power of attorney can avoid the time-consuming and costly process of appointing a guardian or a curator for an incapacitated person. The process requires a physician’s report on the nature and extent of the incapacity, a judicial hearing, and regular reporting to the court or to the commissioner of accounts regarding the finances (the “estate”) of the incapacitated person.
A power of attorney may be revoked by the principal at any time (assuming he/she is competent) but terminates automatically upon the death of the principal.
An agent under a general power of attorney has broad authority to deal with a wide range of matters on behalf of the principal, everything from, for example, buying and selling real estate to providing for the support and maintenance to the principal out of his/her resources.
As explained in a prior column, the medical directive is a different document. It is similar in that both the medical directive and the power of attorney involve the appointment of an agent. The agent under the medical directive and the general power may be the same person or persons. The authority of the agent under the medical directive is restricted to health-related matters.
Tip: Even if you have a valid general power of attorney, it is wise, if you are able, to sign the power of attorney forms with each of your financial institutions (banks and brokerage firms) so that they have on record the appointment of your agent on their own form.
From "Amy & Dan Smith's Planning for Life" column appearing monthly in the Blue Ridge Leader, Loudoun County, VA.
The foregoing article contains general legal information only and is not intended to convey legal advice. For legal advice regarding estate planning, the reader should contact his/her lawyer.
Daniel D. Smith is a partner in the law firm of Smith & Pugh, PLC, 161 Fort Evans Road, NE, Suite 345, Leesburg, VA 20176. (Tel: 703-777-6084, www.smithpugh.com). He has practiced law in Loudoun County since 1980.